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Periscope and the battle of broadcast copyright

Periscope, the live broadcasting and streaming app, was recently purchased by social media favourite Twitter for just under 100 million dollars and allows people to broadcast in real time to the rest of the world. The app has become a firm favourite amongst smartphone lovers as it gives people the power to take broadcasting into their own hands, sharing whatever they are experiencing to an incredible amount of people, all with very little effort.

With this power comes great responsibility, but who’s exactly? There are ‘community guidelines’ clearly stated on the Periscope website to which all of its users must adhere, including the usual suspects – no streaming of pornography or graphic images, for example. But while users have been exploring the app, more grey areas have surfaced around broadcast copyright laws.

On May 2nd, 2015, the boxing world’s hopes and dreams were answered when Manny Pacquiao met Floyd Mayweather in the ring for the first time ever and was to become the biggest and most lucrative showdown in boxing history. The pay-per-view event was expensive, naturally so, as broadcast giants looked to capitalise on the opportunity of the unprecedented hype surrounding the bout. However, in the aftermath, millions of people boasted about watching a live stream of the world title fight on Periscope, a claim backed up by Twitter’s former CEO Dick Costolo.

In order to clarify some of the issues around live streaming on Periscope, I asked social media lawyer Steve Kuncewicz his advice.

1. What are the legal implications for Periscope when users stream live events?

Wimbledon was one of the first major sporting events to attempt to tackle the Periscope “problem” head-on, by strongly discouraging spectators to use Periscope to stream matches live, even when the All England Lawn Tennis Club was using the app itself to capture “unique moments”. Their view, and it’s a fair one, was that the quality of footage which Periscope can currently broadcast didn’t pose a huge challenge to broadcasters, although broadcasting rights (worth a huge amount of money to Wimbledon) were at the heart of their concerns.

However, although it’s unlawful and an infringement of copyright to stream any broadcasts of matches themselves, the events which are broadcast aren’t protected as copyright “works”, and so the threat of infringement can’t be used as a stick with which to beat crowds looking to broadcast their experience to the social media world.
It’s worth remembering, however, that buying a ticket to an event involves entering into a contract with the promoter or venue and so the terms of that contract can be used to impose obligations on spectators not to live stream the event in question or a ban on any filming inside its venue, and potentially to justify ejecting them from it.

However, enforcing that kind of ban can be difficult, costly and counter-productive, as Prince found when he recently threatened to issue copyright infringement proceedings against fans who were trading in YouTube videos of his performances. There’s an argument to be made, as Benedict Cumberbatch did recently when asking members of the audience for his current run in Hamlet at the Barbican, that capturing a “performance” and distributing video copies of it without the consent of the performer is a breach of their performers’ rights, dependent upon the nature and extent of the performance within the video itself – Vines may not justify infringement proceedings as a six-second clip may not be “substantial” enough to meet the criteria which a Court would look for, but with no time limit on Periscope’s videos they may come under fire more often, both from “performers” and venues as well as Content Producers.

So there are clear legal implications for using a live streaming platform such as periscope and its competitors such as Meerkat. Like any industry game changer, brands will need to act quickly to make use of the software for advertising purposes or lose out on a vast and growing audience. While being an excellent opportunity for brands and advertisers, there needs to be some personal quality control on what exactly is streamed to avoid any expensive legal battles over copyright, ownership etc. Periscope do not currently have the necessary stringent controls in place to quickly flag up copyright infringements. HBO, The American Television Network issued dozens of take down notices to Periscope after episodes of Game of Thrones was streamed through the software but many remained as they could not be taken down before the episodes ended. This poses a serious issue for Periscope which will need to be addressed.

2. Are broadcasting companies going to be fighting a losing battle? How do you think the relationship could progress?

The Content Lobby is worried about Periscope, and for good reason. As the music industry has found out, often painfully and at great expense, going to war with the public is a great way to both alienate them and spend money which it can’t necessarily afford to lose. Of course, there will be exceptions and deterrent cases, but the solution to this problem is likely to involve content producers and event promoters embracing the technology they’re afraid of and using it as a delivery mechanism to an audience which is clearly ready to receive media in new ways.

Twitter itself is already playing ball with big content; recent figures suggest that it’s complied with around 71% of requests to take down content after attracting the attention of HBO in particular, and more proactive monitoring of copyright material is in the works at Facebook. As a platform, and as a business, Twitter will want to build better relationships with the content industry, and Periscope will want to avoid cases such as the copyright infringement action currently facing Soundcloud and which came close to making a serious dent in the fortunes of YouTube.

As yet, it is early days and for this reason, precedents are still to be set when it comes to what legal action could be taken and how impactful this could be. The broadcast companies main primary concern is to take these streams down as quickly as possible and keep them down in the future to avoid losing of huge amounts of revenue.

Despite these illegal streams, broadcasters such as HBO are seeing the value with Periscope and had a sponsored stream on the app inside the dressing room of Manny Pacquiao. This shows a potential for a working relationship between Periscope and broadcasting companies but this doesn’t mean they will take copyright infringement lightly. How these case studies will progress and what exactly the implications could be will only become clear over time, but Periscope is definitely here to stay and will only grow bigger and more popular. It will be interesting to see how the battle between Periscope and broadcasters develop but for the time being, it’s the streaming app that seems to be winning the bout.

About the Author

Ric Brooks

Richard is Creative Director at Tunafish Media, a creative communications agency who specialise in producing video content. He is also a proud ambassador for Forever Manchester and recently skydived from 15,000 feet to raise money for them. In his spare time he also enjoys going to the cinema and sports including hiking, and has most recently completed the National 3 peak challenge and has plans for the Yorkshire 3 Peaks.